The VLW Blog

A federal circuit court opinion about whether a joint with a liquor license can let its topless dancers dance fully nude is probably the last place you’d expect to find judges debating the health, or lack thereof, of Latin.

Latin – the noble language of the Romans – recently has enjoyed a bit of a comeback in schools, if you believe the education articles in the popular press.

Judge Boyce F. Martin Jr. doesn’t buy it. He wrote the opinion in the Aug. 30 case handed down by the 6th Circuit, Hamilton’s Bogarts Inc. v. State of Michigan. In the case, the court reversed a district judge, and granted an injunction to the adult bar and topless dancer who were the plaintiffs.

But there was some confusion about whether the state of Michigan was arguing res judicata or collateral estoppel. Martin said that the court would treat the argument as one of collateral estoppel since, he wrote in a footnote, “Latin is a dead language anyway.”

Judge Alice M.Batchelder concurred, noting, “I write separately only to express my suspicion that, like the reports of Mark Twain’s death … the report of the death of Latin in the majority opinion’s footnote 5 is greatly exaggerated.”

Which is nice way of saying, “Et tu, Boyce?”

Thanks to Baker McClanahan for the tip.

A former bankruptcy attorney was sentenced yesterday to a year and a day in prison for conspiracy to commit bank fraud.

Leslie W. Lickstein, 54, of Fairfax, was accused of preparing a false settlement statement in the sale of a property in Great Falls in July 2002.

As a result, Lehman Brothers Bank made a multimillion dollar home mortgage loan to a home buyer who was not creditworthy. The loan went into default, and the bank sold the property at a loss of $1.1 million. Lickstein was ordered to pay that amount in restitution.

Chuck Rosenberg, U.S. attorney for the Eastern District of Virginia, identified Lickstein as the first president of the Northern Virginia Bankruptcy Bar Association.

Lickstein’s license to practice law was suspended for five years in 2004 by the U.S. Bankruptcy Court in Alexandria and by the Virginia State Bar. He was found to have failed to disclose to the court a fact necessary to avoid assisting in a criminal or fraudulent act.

Virginia Beach Commonwealth’s Attorney Harvey L. Bryant III has personal and institutional reasons to be pleased with Tuesday’s ruling by the Virginia Court of Appeals that judges can defer findings of guilt only with the express approval of the General Assembly.

Bryant is the president of the Virginia Association of Commonwealth’s Attorneys. Gibson v. Commonwealth “substantiates the position we have taken all along,” he said.

From a personal standpoint, it vindicates his insistence that Virginia Beach judges not defer judgment in drunken driving cases, as some of them have done. That insistence got him in trouble with the judges, who filed a complaint with the Virginia State Bar contending that he undermined the integrity of the legal system by accusing them of illegal conduct.

Bryant responded that the complaint overstated his comments to a Republican breakfast gathering but acknowledged that he had told the group that he thought judges were exceeding their authority in deferring judgment without legislative authority to do so. He also admitted that he has kept a record of instances in which judges have done so and suggested that he would make that record available when they come up for reappointment. The bar complaint remains under investigation.

He noted that Gibson is still subject to possible review by the full court of appeals or by the Supreme Court of Virginia. “I don’t suppose this is the end of it, but I hope we’re getting close to the end of it,” he said.

See Monday’s VLW for a fuller account of the opinion and the issue.

Four judges from the Virginia Court of Appeals are among nine candidates the judicial nominations committee of the Virginia State Bar has found to be highly qualified to fill the Supreme Court of Virginia vacancy created by the retirement of Justice Elizabeth B. Lacy.

The committee found two candidates to be qualified and made no finding on three others.

The VSB Executive Committee accepted the nominations committee’s report today and transmitted it to Gov. Timothy M. Kaine, who will name Lacy’s replacement. The governor is expected to confer with key legislators before making the appointment because the General Assembly will have the final say when it convenes next year.

Those found highly qualified are:

? Chesterfield County Circuit Judge Michael C. Allen
? Chief Judge Walter S. Felton Jr. of the Court of Appeals
? Court of Appeals Judge Robert P. Frank
? Chesapeake Circuit Judge S. Bernard Goodwyn
? Prince William County Circuit Judge William D. Hamblen
? Court of Appeals Judge Robert J. Humphreys
? Court of Appeals Judge D. Arthur Kelsey
? Prince William County Circuit Judge Leroy F. Millette Jr.
? Chief Deputy Attorney General William C. Mims

Found qualified are:

? Judge L. Thomas Booker Jr., a military judge based in Norfolk
? Mary Jane Hall, a partner at Kaufman & Canoles PC in Norfolk

The committee made no finding on the qualifications of:

? Arelia S. Langhorne, a sole practitioner from Lynchburg
? Sharon M.B. Pigeon, an assistant state attorney general
? Richmond Circuit Judge Margaret P. Spencer

The Virginia Association of Defense Attorneys found eight of those candidates to be qualified: Allen, Felton, Goodwyn, Hall, Hamblen, Kelsey, Millette and Mims.

Arlington Circuit Judge Benjamin N.A. Kendrick yesterday upheld the new law allowing for the establishment of regional transportation authorities that can issue bonds and impose taxes.

This 2007 General Assembly, as part of a comprehensive transportation package, authorized the creation of authorities in Northern Virginia and Hampton Roads.

Richmond lawyer Patrick McSweeney and the challengers he represents call the plan taxation without representation. McSweeny said he will seek to take the matter to the Supreme Court of Virginia.

The Washington Post has the story.

Two judicial proceedings were conducted at the same time today. In one, a defendant pleaded guilty to a felony with a maximum punishment of five years, and the government will be asking for a fifth of that.

In the other, high-powered lawyers argued about the constitutionality of Virginia’s $3 billion transportation plan, which includes projects, taxes and fees that affect everyone in the state. Guess which hearing attracted 31 satellite trucks and a Richmond Times-Dispatch blogging crew that included at least four reporters and an editor.

Granted, the criminal case involves conduct by one of the country’s best known athletes that NFL Commissioner Roger Goodell succinctly described as “cruel and reprehensible.” But the relative attention given Michael Vick and the most important public policy issue confronting the state suggest that it’s all celebrity, all the time for the media.

The controversy over Virginia’s new “civil remedial fees” for “abusive drivers” has generated a lot of ink in the last two months.

The Washington Post has made the brouhaha a little personal for the commonwealth’s lawmakers.

Quite a few public officials, from Gov. Tim Kaine to Speaker Bill Howell to other members of the General Assembly, have been given traffic tickets, mostly for speeding, over the past few years. Not indicated is whether they were rushing to Richmond to get the people’s business done or fleeing from the capital to get the hell out of Dodge.

Would these lawmakers qualify as “abusive drivers” and get nailed for the hefty fees?

Actually, probably not, since many of the offenses detailed in the Post piece fall just this side of reckless driving.

A Kaine spokesman, while denying the governor would be classified as an “abusive driver,” tries to take the Tim-as-everyman approach: “Like many Virginians, the Governor has been cited for speeding…”

“Like many Virginians”? The guy must have been talking about all the officials named in the Post article.

Virginia Beach spent $200,000 in 2002 to put together a facial recognition security system at the Oceanfront, but the system has essentially been scrapped, reports The Virginian-Pilot. It was designed to match facial images to a computer database, but it suffered from technical problems and has not been used in two years.

The Beach chief of police noted that the systems work very well in a closed environment such as a casino or an airport. But the facial-recognition technology just doesn’t cut it at an outdoor venue.

Virginia Beach was the second U.S. city to try the technology, following the lead of Tampa, Fla. But Tampa also encountered problems and abandoned its project in 2003.

Last year, VLW reported a Richmond federal court decision that highlighted the difference between a noncompete in the sale of a business, versus an employment contract noncompete.

In Western Insulation LP v. Moore, U.S. District Judge James R. Spencer awarded nearly $1 million in damages to a Henrico County insulation company that alleged the business sellers, a married couple, breached the sales contract’s restrictive covenant.

The buyers alleged the sellers leased office and warehouse space and two pickup trucks to their former COO to set up a competing business, and helped the COO with bank financing.

Spencer enforced the sales contract’s seven-year noncompete that covered California and the metropolitan Phoenix area, where the sellers had been operating their business.

In its per curiam unpublished opinion released last month, the 4th Circuit upheld the enforceability of the covenant. The panel also agreed the wife committed a breach by entering into the guaranties and related agreements, and the husband by hiring two former employees.

But the appellate court vacated the damage award, saying neither the valuation of the noncompete promises at $250,000, nor the buyer’s evidence of lost profits, supported the damage award.

In addition to vacating the damage award, the 4th Circuit also reversed the district court’s denial of injunctive relief to the disappointed buyer.

The Norfolk office of McGuireWoods received the Attorney General’s Cup today for collecting the most food per capita of any law firm in the state during the first statewide “Legal Food Frenzy” in April.

Attorney General Bob McDonnell presented the Revere bowl to John Padgett, the office’s managing partner, and Shana Jones, an associate who coordinated the office’s effort, at the Southeastern Virginia Foodbank in Norfolk.

Other winners recognized at the event included Norfolk’s Vandeventer Black LLP, which won the award for the most food collected per capita by a large law firm, and Regent University law school, which topped the collection efforts of state law schools.

With 169 law firms participating, the frenzy produced 679,000 pounds of food, well above the goal of 500,000 pounds.

In presenting the award, McDonnell said, “I hope this is the start of the statewide ‘Legal Food Frenzy’ becoming a tradition in the Virginia legal community, and I look forward to next year’s event.”